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Taking from the Twenty-Fifth Amendment: Lessons in Ensuring Presidential Continuity

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Taking from the Twenty-Fifth Amendment: Lessons in Ensuring Presidential Continuity TAKING FROM THE TWENTY-FIFTH AMENDMENT: LESSONS IN ENSURING PRESIDENTIAL CONTINUITY Joel K. Goldstein* TABLE OF CONTENTS INTRODUCTION .......................................................................................... 960 I. TO THE TWENTY-FIFTH AMENDMENT AND WHAT IT BROUGHT .......... 963 A. The Context of the Twenty-Fifth Amendment ........................... 963 B. Presidential Inability ................................................................ 966 C. Vice Presidential Vacancy ........................................................ 968 D. First Implementations .............................................................. 969 1. Presidential Succession ...................................................... 969 2. Filling Vice Presidential Vacancy ...................................... 970 3. Presidential Inability .......................................................... 975 II. THE FOUNDATIONS OF THE TWENTY-FIFTH AMENDMENT .................. 980 A. Constitutional Principles .......................................................... 981 1. Presidential Continuity ....................................................... 981 a. A Prepared Successor .................................................. 982 b. Harmony Breeds Preparation ...................................... 983 c. Party Continuity ........................................................... 984 2. A Presidential Vice President ............................................ 985 3. A New Vice Presidential Vision ........................................ 985 4. Separation of Powers/Checks and Balances ...................... 987 5. Democratic Pedigree .......................................................... 991 6. Accountable Decision Making ........................................... 992 7. Deliberative Decision Making ........................................... 993 8. Preferring Procedures ......................................................... 994 * Vincent C. Immel Professor of Law, Saint Louis University School of Law. I am grateful to John D. Feerick and James Fleming for their helpful comments; to Colin Luoma and Margaret McDermott, Esq. for research assistance; to Stephanie Haley for administrative help; and to a number of my colleagues at Saint Louis University School of Law who made suggestions during a workshop I presented as part of its faculty workshop series. Conversations with Akhil Reed Amar, Birch Bayh, John Feerick, Jim Fleming, Ned Foley, John Fortier, Bob Gilbert, Rose McDermott, Norman Ornstein, and Bill Treanor at the Fordham Law School Symposium, and in some cases over a period of years, have given me a better understanding of these issues. I am particularly grateful to John Feerick for such discussions (and friendship) over a period now spanning thirty-five years. 959 960 FORDHAM LAW REVIEW [Vol. 79 9. A Government of Laws ...................................................... 995 10. A Government of People Within Those Laws ................. 996 11. Conclusion ....................................................................... 998 B. Legislative Principles ............................................................... 998 1. Seize the Moment ............................................................ 1000 2. Sticking with the Conventional ........................................ 1001 3. Something Is Better Than Nothing .................................. 1003 4. Compromise ..................................................................... 1005 5. Dedicated Leadership ....................................................... 1006 6. Percolating Ideas .............................................................. 1007 7. Mobilized Support ........................................................... 1008 8. Something for Everyone .................................................. 1009 9. Navigating Around Personal Sensitivities ....................... 1010 10. Building Momentum ...................................................... 1011 11. Conclusion ..................................................................... 1012 III. THE MODERN CONTEXT ................................................................... 1013 A. Exceeding Expectations: The Vice Presidency Transformed 1013 B. Twenty-Fifth Amendment Precedents ..................................... 1015 C. Wake Up Calls ........................................................................ 1015 IV. AFTER THE VICE PRESIDENT ............................................................ 1017 A. Introduction: Succession After the Vice President ................ 1017 B. Who Should Be Two (or Three) Heartbeats Away? Some Constitutional Considerations .............................................. 1019 1. The Perils of Cross-Party Succession .............................. 1027 2. Succession of the President Pro Tempore: An Unpresidential Acting President ................................ 1029 C. Mass Catastrophe Problems: The Need for and Perils of a Long Line .............................................................................. 1031 D. The Disability Gap ................................................................. 1032 E. Failure To Qualify .................................................................. 1034 F. Changing the Line ................................................................... 1036 CONCLUSION: THE TEACHINGS OF THE TWENTY-FIFTH AMENDMENT . 1040 INTRODUCTION When the United States has a vigorous and apparently healthy President, as it generally does, its arrangements for ensuring presidential continuity receive little scrutiny. The absence of a current or recent succession crisis focuses attention on more immediate concerns. The ordinary indifference to presidential continuity issues finds further justification in the common belief that the system has always proven adequate to deal with whatever circumstances history has presented, a perception which encourages confidence that it will also handle those contingencies the future imposes. 2010] LESSONS IN ENSURING PRESIDENTIAL CONTINUITY 961 For a variety of reasons, some academics and activists who study presidential continuity reject this popular consensus.1 They point to gaps in the system and the number of times the nation has narrowly avoided some continuity crises and discount as naïve and optimistic the conclusion that these past escapes predict future deliverance. They imagine that disaster, if not just around the corner, lurks somewhere in the future and, absent corrective action, will someday leave the nation without a functioning President. Discussions of America’s arrangements for ensuring presidential continuity tend to proceed in one of two general directions. Some criticize various aspects of the Twenty-Fifth Amendment as inadequate to deal with the topics they address. More recent complaints have targeted the provisions for declaring a President disabled,2 although the method for filling a vice presidential vacancy has not entirely escaped criticism.3 Alternatively, another body of work views the Twenty-Fifth Amendment as a step forward but identifies troubling gaps in areas it does not regulate, such as the lack of procedures to declare a President disabled in the absence of a Vice President, the lack of a method to declare a Vice President disabled, the problematic line of succession after the Vice President, and a host of contingencies which could prevent the electoral system from producing an appropriate and functioning President by inauguration day.4 In fact, the Twenty-Fifth Amendment constituted a major advance that remedied some of the most glaring problems regarding presidential continuity. It operates in an area made complex by a number of factors including the variety of continuity crises which may arise, the difficult context in which they typically occur, the demands they impose for quick human decision, and the impediments to adequate preparation for that response. At its most basic level, the Amendment added several new 1. See, e.g., Akhil Reed Amar, Address, Applications and Implications of the Twenty- Fifth Amendment, 47 HOUS. L. REV. 1, 2, 7–9 (2010); see also John C. Fortier & Norman J. Ornstein, Presidential Succession and Congressional Leaders, 53 CATH. U. L. REV. 993, 993–94 (2004); Joel K. Goldstein, Commentary, Akhil Reed Amar and Presidential Continuity, 47 HOUS. L. REV. 67, 69–70 (2010). 2. See, e.g., Herbert L. Abrams, Can the Twenty-Fifth Amendment Deal with a Disabled President? Preventing Future White House Cover-Ups, 29 PRESIDENTIAL STUD. Q. 115, 129 (1999). 3. See, e.g., Examination of the First Implementation of Section Two of the Twenty- Fifth Amendment: Hearing on S.J. Res. 26 Before the Subcomm. on Constitutional Amendments of the S. Comm. on the Judiciary, 94th Cong. 67–70 (1975) [hereinafter 1975 Senate Hearings] (statement of Arthur M. Schlesinger, Jr., presidential historian and scholar); Arthur Schlesinger, Jr., What to Do About a Nonjob, N.Y. TIMES, Nov. 29, 1974, at 39 (calling for repeal of Section 2 and ultimately abolition of Vice Presidency); Editorial, Vice President Ford, N.Y. TIMES, Dec. 7, 1973, at 40 (criticizing implementation of Section 2); Warren Weaver, Jr., Law Experts Critical of 25th Amendment, N.Y. TIMES, Dec. 20, 1974, at 16 (quoting scholars and legislators criticizing aspects of Section 2); Tom Wicker, Why Rush to Change the 25th?, N.Y. TIMES, Nov. 19, 1974, at 43 (calling for special presidential election if Section 2 Vice President becomes President). 4. See, e.g., CONTINUTITY OF GOV’T COMM’N, PRESERVING
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